February 29, 2012, Introduced by Senator HOPGOOD and referred to the Committee on Judiciary.
A bill to amend 1970 PA 91, entitled
"Child custody act of 1970,"
by amending sections 2, 5, and 7a (MCL 722.22, 722.25, and
722.27a), section 2 as amended by 2005 PA 327, section 5 as amended
by 1993 PA 259, and section 7a as amended by 1996 PA 19, and by
adding section 5a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2. As used in this act:
(a) "Active military duty" means when a reserve unit member or
national guard unit member is called into active military duty.
(b) "Agency" means a legally authorized public or private
organization, or governmental unit or official, whether of this
state or of another state or country, concerned in the welfare of
minor children, including a licensed child placement agency.
(c) "Attorney" means, if appointed to represent a child under
this act, an attorney serving as the child's legal advocate in a
traditional attorney-client relationship with the child, as
governed by the Michigan rules of professional conduct. An attorney
defined under this subdivision owes the same duties of undivided
loyalty, confidentiality, and zealous representation of the child's
expressed wishes as the attorney would to an adult client.
(d) "Child" means minor child and children. Subject to section
5b of the support and parenting time enforcement act, 1982 PA 295,
MCL 552.605b, for purposes of providing support, child includes a
child and children who have reached 18 years of age.
(e) "Grandparent" means a natural or adoptive parent of a
child's natural or adoptive parent.
(f) "Guardian ad litem" means an individual whom the court
appoints to assist the court in determining the child's best
interests. A guardian ad litem does not need to be an attorney.
(g) "Lawyer-guardian ad litem" means an attorney appointed
under section 4. A lawyer-guardian ad litem represents the child,
and has the powers and duties, as set forth in section 4.
(h) "Michigan penal code" means the Michigan penal code, 1931
PA 328, MCL 750.1 to 750.568.
(i) (h)
"Parent" means the
natural or adoptive parent of a
child.
(j) "Sex offenders registration act" means the sex offenders
registration act, 1994 PA 295, MCL 28.721 to 28.736.
(k) (i)
"State disbursement unit"
or "SDU" means the entity
established in section 6 of the office of child support act, 1971
PA 174, MCL 400.236.
(l) (j)
"Third person" means an
individual other than a parent.
Sec. 5. (1) If a child custody dispute is between the parents,
between agencies, or between third persons, the best interests of
the child control. If the child custody dispute is between the
parent or parents and an agency or a third person, the court shall
presume that the best interests of the child are served by awarding
custody to the parent or parents, unless the contrary is
established by clear and convincing evidence.
(2) Notwithstanding other provisions of this act, if a child
custody dispute involves a child who is conceived as the result of
acts for which 1 of the child's biological parents is convicted of
criminal sexual conduct as provided in sections 520a to 520e and
520g
of the Michigan penal code, Act No. 328 of the Public Acts of
1931,
being sections 750.520a to 750.520e and 750.520g of the
Michigan
Compiled Laws MCL 750.520a to
750.520e and 750.520g, the
court shall not award custody to the convicted biological parent.
This subsection does not apply to a conviction under section
520d(1)(a)
of the Michigan penal code, Act No. 328 of the Public
Acts
of 1931, being section 750.520d of the Michigan Compiled Laws
MCL 750.520d. This subsection does not apply if, after the date of
the conviction, the biological parents cohabit and establish a
mutual custodial environment for the child.
(3) Notwithstanding other provisions of this act, if an
individual is convicted of criminal sexual conduct as provided in
sections
520a to 520e and 520g of Act No. 328 of the Public Acts of
1931
the Michigan penal code, MCL
750.520a to 750.520e and
750.520g, and the victim is the individual's child, the court shall
not award custody of that child or a sibling of that child to that
individual, unless both the child's other parent and, if the court
considers the child or sibling to be of sufficient age to express
his or her desires, the child or sibling consent to the custody.
(4) Notwithstanding other provisions of this act, if an
individual is required to register under the sex offenders
registration act, the provisions of section 5a control.
Sec. 5a. (1) Notwithstanding other provisions of this act, a
court shall not grant custody of or parenting time with a child to
an individual who is required to register under the sex offenders
registration act for an offense that would make it contrary to the
best interests of the child's health, safety, or protection for
such custody or parenting time or for an offense in which the
victim was a child or if the individual has been convicted under
section 145a, 145b, 145d, 520b to 520e, or 520g of the Michigan
penal code, MCL 750.145a, 750.145b, 750.145d, 750.520b to 750.520e,
and 750.520g, unless the court finds that there is no significant
risk to the child and states its reasons in writing or on the
record and both the child's other parent and, if the court
considers the child to be of sufficient age to express his or her
desires, the child consent to the custody or parenting time.
(2) No individual shall be granted custody of or parenting
time with a child if anyone residing in the individual's household
is required to register under the sex offenders registration act as
a result of a felony conviction in which the victim was a child or
for an offense that would make it contrary to the best interests of
the child's health, safety, or protection for such custody or
parenting unless the court finds that there is no significant risk
to the child and states its reasons in writing or on the record and
both the child's other parent and, if the court considers the child
to be of sufficient age to express his or her desires, the child
consent to the custody or parenting time.
(3) The fact that a child is permitted unsupervised contact
with an individual who is required, as a result of a felony
conviction in which the victim was a child, to be registered under
the sex offenders registration act is prima facie evidence that the
child is at significant risk. When making a determination regarding
significant risk to the child, the prima facie evidence constitutes
a presumption affecting the burden of producing evidence. The
individual required to register under the sex offenders
registration act has the burden of rebutting the presumption. This
presumption does not apply if there are factors mitigating against
its application, including whether the other party seeking custody
or parenting time is also required, as the result of a felony
conviction in which the victim was a child, to register under the
sex offenders registration act.
(4) Before making a determination under subsection (1) or (2)
to grant custody of or parenting time with a child, the court shall
determine if the child's parent who is not required to register
under the sex offenders registration act is a fit parent and if
that parent is making the decision on custody or parenting time in
the best interest of the child's health, safety, or protection. If
the court determines that the parent described in this subsection
is fit and is making the decision on custody or parenting time in
the best interest of the child's health, safety, or protection, the
court may allow that parent to exercise his or her ability to deny
custody or parenting time as provided in subsection (1) or (2). If
the court determines that the parent described in this subsection
is not fit or is not acting in the best interest of the child's
health, safety, or protection, the court shall state in writing why
the court does not consider that parent fit, why the court
determined that the parent is not acting in the best interest of
the child's health, safety, or protection, or why the court has
determined that the child would not be at significant risk if the
court grants custody or parenting time to the parent required to
register under the sex offenders registration act.
Sec. 7a. (1) Parenting time shall be granted in accordance
with the best interests of the child. It is presumed to be in the
best interests of a child for the child to have a strong
relationship with both of his or her parents. Except as otherwise
provided in this section, parenting time shall be granted to a
parent in a frequency, duration, and type reasonably calculated to
promote a strong relationship between the child and the parent
granted parenting time.
(2) If the parents of a child agree on parenting time terms,
the court shall order the parenting time terms unless the court
determines on the record by clear and convincing evidence that the
parenting time terms are not in the best interests of the child.
(3)
A Except as provided in section
5a, a child has a right to
parenting time with a parent unless it is shown on the record by
clear and convincing evidence that it would endanger the child's
physical, mental, or emotional health.
(4) Notwithstanding other provisions of this act, if a
proceeding regarding parenting time involves a child who is
conceived as the result of acts for which 1 of the child's
biological parents is convicted of criminal sexual conduct as
provided in sections 520a to 520e and 520g of the Michigan penal
code,
Act No. 328 of the Public Acts of 1931, being sections
750.520a
to 750.520e and 750.520g of the Michigan Compiled Laws MCL
750.520a to 750.520e and 750.520g, the court shall not grant
parenting time to the convicted biological parent. This subsection
does
not apply to a conviction under section 520d(1)(a) of Act No.
328
of the Public Acts of 1931, being section 750.520d of the
Michigan
Compiled Laws the Michigan
penal code, MCL 750.520d. This
subsection does not apply if, after the date of the conviction, the
biological parents cohabit and establish a mutual custodial
environment for the child.
(5) Notwithstanding other provisions of this act, if an
individual is convicted of criminal sexual conduct as provided in
sections
520a to 520e and 520g of Act No. 328 of the Public Acts of
1931
the Michigan penal code, MCL
750.520a to 750.520e and
750.520g, and the victim is the individual's child, the court shall
not grant parenting time with that child or a sibling of that child
to that individual, unless both the child's other parent and, if
the court considers the child or sibling to be of sufficient age to
express his or her desires, the child or sibling consent to the
parenting time.
(6) Notwithstanding other provisions of this act, if an
individual is required to register under the sex offenders
registration act, the provisions of section 5a control.
(7) (6)
The court may consider the
following factors when
determining the frequency, duration, and type of parenting time to
be granted:
(a) The existence of any special circumstances or needs of the
child.
(b) Whether the child is a nursing child less than 6 months of
age, or less than 1 year of age if the child receives substantial
nutrition through nursing.
(c) The reasonable likelihood of abuse or neglect of the child
during parenting time.
(d) The reasonable likelihood of abuse of a parent resulting
from the exercise of parenting time.
(e) The inconvenience to, and burdensome impact or effect on,
the child of traveling for purposes of parenting time.
(f) Whether a parent can reasonably be expected to exercise
parenting time in accordance with the court order.
(g) Whether a parent has frequently failed to exercise
reasonable parenting time.
(h) The threatened or actual detention of the child with the
intent to retain or conceal the child from the other parent or from
a third person who has legal custody. A custodial parent's
temporary residence with the child in a domestic violence shelter
shall not be construed as evidence of the custodial parent's intent
to retain or conceal the child from the other parent.
(i) Any other relevant factors.
(8) (7)
Parenting time shall be granted in
specific terms if
requested by either party at any time.
(9) (8)
A parenting time order may contain
any reasonable
terms or conditions that facilitate the orderly and meaningful
exercise of parenting time by a parent, including 1 or more of the
following:
(a) Division of the responsibility to transport the child.
(b) Division of the cost of transporting the child.
(c) Restrictions on the presence of third persons during
parenting time.
(d) Requirements that the child be ready for parenting time at
a specific time.
(e) Requirements that the parent arrive for parenting time and
return the child from parenting time at specific times.
(f) Requirements that parenting time occur in the presence of
a third person or agency.
(g) Requirements that a party post a bond to assure compliance
with a parenting time order.
(h) Requirements of reasonable notice when parenting time will
not occur.
(i) Any other reasonable condition determined to be
appropriate in the particular case.
(10) (9)
During the time a child is with a
parent to whom
parenting time has been awarded, that parent shall decide all
routine matters concerning the child.
(11) (10)
Prior to entry of a temporary
order, a parent may
seek an ex parte interim order concerning parenting time. If the
court enters an ex parte interim order concerning parenting time,
the party on whose motion the ex parte interim order is entered
shall have a true copy of the order served on the friend of the
court and the opposing party.
(12) (11)
If the opposing party objects to
the ex parte
interim order, he or she shall file with the clerk of the court
within 14 days after receiving notice of the order a written
objection to, or a motion to modify or rescind, the ex parte
interim order. The opposing party shall have a true copy of the
written objection or motion served on the friend of the court and
the party who obtained the ex parte interim order.
(13) (12)
If the opposing party files a
written objection to
the ex parte interim order, the friend of the court shall attempt
to resolve the dispute within 14 days after receiving it. If the
matter cannot be resolved, the friend of the court shall provide
the opposing party with a form motion and order with written
instructions for their use in modifying or rescinding the ex parte
order without assistance of counsel. If the opposing party wishes
to proceed without assistance of counsel, the friend of the court
shall schedule a hearing with the court that shall be held within
21 days after the filing of the motion. If the opposing party files
a motion to modify or rescind the ex parte interim order and
requests a hearing, the court shall resolve the dispute within 28
days after the hearing is requested.
(14) (13)
An ex parte interim order issued
under this section
shall contain the following notice:
NOTICE:
1. You may file a written objection to this order or a motion
to modify or rescind this order. You must file the written
objection or motion with the clerk of the court within 14 days
after you were served with this order. You must serve a true copy
of the objection or motion on the friend of the court and the party
who obtained the order.
2. If you file a written objection, the friend of the court
must try to resolve the dispute. If the friend of the court cannot
resolve the dispute and if you wish to bring the matter before the
court without the assistance of counsel, the friend of the court
must provide you with form pleadings and written instructions and
must schedule a hearing with the court.